May 2015
General terms and conditions
Content
I. Terms and Conditions of Supply and Payment
II. Offers, subsidiary agreements, prices
III. Delivery and assumption of risk
IV. Warranty, liability
V. Payment and security interests
VI. Conclusion
Validity of our Terms and Conditions of Business
1. The following General Terms and Conditions shall apply to all
current and future business relations with contractors as customers
and are solely decisive for the content of concluded sales
contracts as well as other contracts, including mixed-purpose
contracts.
2. Contractors, in the sense of the Terms and Conditions, are natural
or legal persons or legally constituted private limited companies,
with which a business relationship is entered into, exercising
a commercial or self-employed professional activity.
3. Regulations differing from these Terms and Conditions, in particular
also differing, conflicting or supplementary General Terms
and Conditions of customers, even with the knowledge thereof,
shall not constitute part of contracts, unless the validity thereof
is expressly agreed to in writing. Amendments and supplements
to a contract, as well as supplementary agreements shall only be
binding if they are confirmed in writing.
II. Offers, subsidiary agreements, prices
1. Our offers are subject to change without notice, except where
these are specifically limited in time and are subject to sale. Orders
shall not be binding on us until such time as we issue a
written confirmation or effect delivery of the goods.
2. Subsidiary agreements and amendments shall only be valid if
confirmed in writing by ourselves. An express prerequisite for any
undertaking concerning specific features of our goods is the marking
of these features by ourselves. Specimens and samples shall
be considered only as approximate visual demonstration material.
3. The offered prices are plus the statutory value added tax valid
on the day of the delivery of the goods. A discount shall not be
granted. The despatch shall take place at our discretion in customary
packaging. Required special packaging (e.g. seaworthy
packaging) and other expenses, taxes and duties shall be borne
by the Buyer. Agreed supplementary services shall be charged
additionally.
If the customer is a merchant and the contract part of the operation
of his commercial enterprise, or a legal person under public
law, our price prevailing on the date of delivery shall apply in all
cases. In other cases price alterations shall only be permissible,
if the period between conclusion of the contract and the agreed
delivery date is more than four months; in such cases the price
prevailing on the date of delivery of the contract shall apply. Unless
otherwise agreed, our prices shall be understood as ex-factory
or ex warehouse.
The sales-related minimum rates, agreed upon, are binding. Provided
that the order is below the freight limit, we will charge
freight costs in the amount of €4.50.
4. Discounts on products are only granted when distributed in the
own premises. They shall not apply when selling-on to resellers.
III. Delivery and assumption of risk
1. Delivery periods are subject to change without notice, except
in cases where we have given express written confirmation that
the delivery times have been agreed as binding. We shall make
every effort to take account of our customer‘s call-off dates after
taking into consideration our other commitments. If delivery periods
have been agreed in writing, these shall commence upon
conclusion of the contract, however not before submission of
documents, authorisations and releases to be provided by the
customer. Partial performances are permitted, unless the Buyer
proves that the partial performance is of no interest to him.
2. Should we be hindered in the compliance with the performance
period due to unforeseen circumstances outside of our
direct sphere of influence, which with the diligence of a prudent
businessman cannot be averted (force majeure), the performance
period shall thus be extended as appropriate by the time period
and the extent of such obstacles, in as far as the performance
shall not finally be made impossible. Force majeure is considered
in particular to be operational breakdowns caused by fire, water
and similar circumstances, failure of production equipment and
machinery, strike and lock-out, lack of labour, material, energy,
transport etc., regardless of whether these circumstances occur
at our business establishment or at the establishment of one of
our previous contractors or subcontractors. The Buyer shall be
informed of such circumstances by us. Partial deliveries already
made shall be deemed to be an independent business.
3. Should effective delivery dates have been agreed, we shall not
be in default of performance until a written reminder has been
received. Should we be in default of performance or should a
reason for impossibility to perform exist which is attributable to
us, the customer shall be entitled to rescind the contract, provided
that he has granted us an appropriate period of grace in writing,
accompanied by notification that upon expiry of the period of
grace, he shall refuse acceptance of the goods.
Rescission must be made in writing. The entitlement of the customer
to claim compensation for damages shall be excluded, unless
the claims concern intentional or grossly negligent conduct on
the part of ourselves, a legal representative or a vicarious agent.
4. The customer is obliged to accept the goods ordered. Should
he default on fulfilment of this obligation, we shall be entitled to
grant an appropriate period of grace in writing, accompanied by
notification that upon expiry of the period of grace, fulfilment of
the contract shall be refused. In such cases we shall be entitled
to choose, at our discretion, between rescission of the contract
or asserting claims for damages as a result of non-performance.
Excess delivery or short delivery up to 10% per single product of
the ordered goods is no subject to claim. The definite amount of
the delivered goods will be invoiced. The quantities concerning
excess delivery or short delivery rise to 15% for Buyers ordering
private label.
5. The risk shall pass to the Buyer upon loading ex-factory or ex
warehouse. If the Buyer demands a delivery at a subsequent date,
the risk shall pass to the Buyer upon invoicing. The goods shall
then be in transit at the Buyer’s risk, even in cases where freight
is prepaid by ourselves and irrespective of whether transport is
effected with our own vehicles or by a third party company. The
choice of the transport routes shall be made freely after due assessment
of the circumstances. Transport insurance shall be taken
out only if expressly requested by the Buyer and shall be for his
account. For the purpose of determining the weight of the delivery,
the weight determined on departure shall be authoritative.
IV. Warranty, liability
1. Customary commercial tolerances regarding measurements,
quantities and other quality requirements shall not be considered
as defects; if the goods delivered are within these tolerances we
shall be under no obligation in respect of liability.
2. a) Buyers must advise us of obvious defects within a period
of one week from receipt of the goods in writing, otherwise, the
assertion of the warranty claim is excluded. Timely despatch is
sufficient to comply with the deadline. The Buyer shall bear the
full burden of proof for all prerequisites of claims, in particular for
the defect itself, for the time of the determination of the defect
and for the prompt lodging of a complaint in respect of the defect.
b) If the purchase is a commercial transaction for both parties, the
Buyer shall inspect the goods immediately after delivery to check
their freedom from defects and for their completeness, and to
thereby notify us immediately of any defects found. Should the
Buyer fail to timely inspect the goods or to give notification of the
defects, the delivered goods shall be deemed approved, unless
the defect was not able to be noticed during the inspection. We
shall also be immediately notified of defects which are discovered
later on; otherwise the goods shall also be deemed approved
even with respect to this defect. The notice of defect shall be
submitted in writing respectively and the claimed defect exactly
described. Moreover, Section 377 of the German Commercial Code
shall apply accordingly.
3. Should our warranty obligation apply, we shall as a matter of
principle, fulfil this obligation by means of a replacement delivery
of faultless goods against return of the defective goods. Should
only part of the delivered goods be defective, the obligation
to provide a replacement delivery shall be limited to this part.
Should the replacement delivery fail, the Buyer shall be entitled
to demand a reduction of the purchasing price or rescission of the
contract with respect to the defective part of the delivery. Claims
for damages as a result of defects of our goods shall be excluded.
This shall not apply in the case of expressly assured features if the
customer is a non-merchant.
4. The Buyer shall contact us first to receive authority to return
goods with a correctly completed returns form. We reserve the
right of returning goods to the Buyer’s expense, in case he sent
them back without having the authority from us.
5. a) In the case of slight negligence, our liability is limited to the
foreseeable, average damage, typical of the Contract, according
to the type of subject of the fulfilment. This also applies in the
case of slight negligence on the part of our legal representatives
or vicarious agents
b) However, we shall not be liable for slight negligence of insignificant
contractual obligations.
c) The foregoing disclaimers and limitations of liability shall not
apply for cases of no-fault liability, in particular according to the
product liability law and not for attributable personal injury, damage
to health or loss of life and not for damages which are based
on intent, gross negligence or the lack of warranted properties.
6. The warranty shall lapse if the goods are stored improperly or
modified by the Buyer.
V. Payment and security interests
1. The payment terms as indicated on the invoice are binding. The
date of receipt of payment is decisively.
2. We shall be entitled to charge Buyers who are merchants or
legal persons under public law, interest on overdue payments at
a level 8% above the prevailing discount rate as from the date on
which payment is due. However in the case of Buyers who are not
merchants, this interest may not be charged until default applies.
3. Should the Buyer default on payment we shall be entitled to
make due, without any form of cash discount, all deferred payments
or those not yet due and to demand payment in cash or
the provision of collateral. This shall also apply in the case of any
possible form of visible deterioration in the net worth value, in
particular the filing of a petition in bankruptcy, the initiation of
judicial or extra-judicial composition proceedings, or the carrying
out of court ordered enforcement measures.
4. Our statements of account shall be considered accepted if no
written objection is made within one month of receipt.
5. Offsetting against counter claims shall be admissible only if
these are legally determined or recognised by ourselves and are
due for payment. The Buyer shall refrain from asserting claims for
the right of retention from previous or other business transactions
within the current business relationship.
6. We shall retain title to goods delivered as conditional commodities
until payment of the purchasing price and repayment of all
pending claims arising from the business relationship has been
received. In the case of default of payment, we shall be entitled
to take back the conditional commodities and the Buyer shall be
obliged to release the same.
The Buyer is entitled to sell the delivered goods to a third party in
the context of a normal business transaction, provided he fulfils
his obligations to us.
If the goods that are our property are sold to a third party by the
Buyer, the Buyer‘s claim against the third party shall come into
effect to the invoice value of our claims, instead of the goods,
without any express assignment to us being necessary.
The transfer of individual accounts receivables, into a current account
shall not nullify the retention of title; the same shall apply to
the striking of a balance and the recognition thereof.
VI. Conclusion
1. The Law of the Federal Republic of Germany shall apply without
the law rules of private international law and under exclusion of
the UN Sales Law.
2. Should a provision of these General Terms and Conditions be
or become wholly or partially invalid, the validity of the remaining
provisions shall not be affected thereby. The wholly or partly
ineffective provision shall be replaced by a regulation, the economic
success of which comes as close as possible to the invalid
regulation.
3. Modifications to these provisions are only possible in writing.
The written agreement can also only be changed in writing.
4. If certain goods are delivered under special conditions of delivery,
the above Terms and Conditions shall in addition apply to
the extent that they do not contradict the special conditions of
delivery.
5. The place of performance for all deliveries, also for free deliveries,
is our distribution centre in 06796 Brehna, Germany.
6. If the customer is a merchant, a legal person under public law or
a special fund under public law, the agreed place of jurisdiction for
all disputes arising from this Contract is Freiburg im Breisgau/Germany,
with the provision that we are also entitled to file suit at
the place of domicile or branch of the customer. The same applies
if the customer does not have a general place of jurisdiction in
Germany or if his place of residence or normal place of residence
at the time of the legal action is not known.
This also applies to disputes concerning documents, bills of exchange
or cheques, irrespective of the place of payment arising
from the bill of exchange or cheque.